Opinion
Index No. 850283/2017 Motion Seq. No. 006
01-12-2024
DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST MORTGAGE LOAN PASS-THROUGH CERTIFICATES SERIES 2005-9, Plaintiff, v. ELENA ESHAGHPOUR, JAMILEH ESHAGHPOUR, NEW YORK CITY PARKING VIOLATIONS BUREAU, NEW YORK CITY TRANSIT ADJUDICATION BUREA, A AMARONE INC., BOARD OF MANAGERS OF THE PROMENADE CONDOMINIUM, CITIBANK, N.A., HISTORICAL ARTS AND CASTING INC., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, ROBERT POON, PMF STEEL CORP, BRAVO REALTY CORP., A NEW YORK CORPORATION, JOHN DOE AND MARY DOE, (SAID NAMES BEING FICTITIOUS, IT BEING THE INTENTION OF PLAINTIFF TO DESIGNATE ANY AND ALL OCCUPANTS, TENANTS, PERSONS OR CORPORATIONS, IF ANY, HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON THE PREMISES BEING FORECLOSED HEREIN.), Defendant.
Unpublished Opinion
PRESENT: HON. FRANCIS A. KAHN, III, Justice
DECISION + ORDER ON MOTION
HON. FRANCIS A. KAHN, III, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 006) 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 150, 152, 153, 154, 155, 156, 157, 158, 159, 161, 162 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, the motion is determined as follows:
In this action, Plaintiff seeks to foreclose on a consolidated, extended and modified mortgage, dated May 16, 2006, encumbering residential real property located at 530 East 76th Street, New York, New York. Plaintiff commenced this action alleging inter alia that Defendants/Mortgagors Elena and Jamileh Eshaghpour ("Eshaghpour") defaulted in repayment of the loan secured by the mortgage. Eshaghpours filed an amended answer and pled twenty-five affirmative defenses, including lack of standing. Now, Plaintiff moves for summary judgment against the appearing Defendants, to strike their answers and affirmative defenses, for an order of reference and to amend the caption. Eshaghpours oppose the motion.
In moving for summary judgment, Plaintiff was required to establish prima facie entitlement to judgment as a matter of law though proof of the mortgage, the note, and evidence of Defendants' default in repayment (see U.S. Bank, N.A. v James, 180 A.D.3d 594 [1st Dept 2020]; Bank of NY v Knowles, 151 A.D.3d 596 [1st Dept 2017]; Fortress Credit Corp, v Hudson Yards, LLC, 78 A.D.3d 577 [1st Dept 2010]). Proof supporting a prima facie case on a motion for summary' judgment must be in admissible form (see CPLR §3212[b]; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 A.D.3d 780 [1st Dept 2019]). Based on the affirmative defenses pled. Plaintiff was required to demonstrate, prima facie, its standing (see eg Wells Fargo Bank, N.A. v Tricario, 1 80 A.D.3d 848 [2nd Dept 2020]) and its strict compliance with RPAPL §§1304 and 1306 (see U.S. Bank. NA v Nathan, 173 A.D.3d 1112 [2d Dept 2019]; HSBC Bank USA, N.A. v Bermudez, 175 A.D.3d 667, 669 [2d Dept 2019]). In support of a motion for summary judgment on a cause of action for foreclosure, a plaintiff may rely on evidence from persons with personal knowledge of the facts, documents in admissible form and/or persons with knowledge derived from produced admissible records (see eg U.S. Bank N.A. v Moulton, 179 A.D.3d 734, 738 [2d Dept 2020]). No particular set of business records must be proffered, as long as the admissibility requirements of CPLR 4518[a] arc fulfilled and the records evince the facts for which they are relied upon (see eg Citigroup v Kopelowitz, 147 A.D.3d 1014, 1015 [2d Dept 2017]).
Plaintiffs motion was supported by an affidavit from Nicholas J. Raab ("Raab"), an officer or employee of Specialized Loan Servicing LLC ("SLS"), Plaintiffs alleged loan servicing agent for the subject loan. Raab established a foundation under CPLR §4518 for admission of SLS's documents as business records via his personal knowledge of the record-keeping procedures of same (see Bank of N.Y. Mellon v Gordon, 171 A.D.3d 197 [2d Dept 2019]). The records of prior holders/servicers were also admissible since Raab sufficiently established that those records were received from their makers, incorporated into the records Plaintiff kept and that it routinely relied upon such documents in its business (see U.S. Bank N.A. v Kropp-Somoza, 191 A.D.3d 918 [2d Dept 2021]). Further, the records referenced by Raab were annexed to the moving papers (cf. Deutsche Bank Natl. Trust Co. v Kirschenbaum, 187 A.D.3d 569 [1st Dept 20201). The power of attorney dated August 3, 2021, demonstrated LNR's authority to act on behalf of Plaintiff (see Deutsche Bank Natl. Trust Co. v Silverman, 178 A.D.3d 898, 901 [2d Dept 2019]). As such, the affidavit and referenced documents sufficiently evidenced the note and mortgage.
As to the Mortgagor's default, it "is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form" (Deutsche Bank Natl. Trust Co. v McGann, 183 A.D.3d 700, 702 [2d Dept 2020]). Here, Raab's review of the attached account records demonstrated that the Mortgagors defaulted in repayment under the note (see eg ING Real Estate Fin. (USA) LLC v Park Ave. Hotel Acquisition, LLC, 89 A.D.3d 506 [1st Dept 2011]).
Accordingly. Plaintiff demonstrated prima facie the note, mortgage and Defendant's default in repayment thereunder.
As to standing in a foreclosure action, it is established in one of three ways: [11 direct privity between mortgagor and mortgagee, [2] physical possession of the note prior to commencement of the action that contains an indorsement in blank or bears a special indorsement payable to the order of the plaintiff either on its face or by allonge, and [3] assignment of the note to Plaintiff prior to commencement of the action (see eg Wells Fargo Bank. N.A. v Tricario, 180 A.D.3d 848 [2d Dept 2020]; Wells Fargo Bank NA v Ostiguy, 127 A.D.3d 1375 [3d Dept 2015]). Here, Plaintiff, demonstrated with the affidavit of Raab and the written assignment of the mortgage dated November 22, 2021, that it was the holder of the note when the action was commenced (see PNC Bank. NA Salcedo, 161 A.D.3d 571 [1stDept 2018]). Although an assignment of a mortgage is ordinarily a nullity in this context, the within assignment expressly stated that the mortgage was assigned together with "with the bond or note or obligation described in said mortgage, and the moneys due". This evidence sufficiently established conveyance of the note (see U.S. Bank Natl. Assn, v Ezugwu, 162 A.D.3d 613 [1st Dept 2018]; GRP Loan, LLC v Taylor, 95 A.D.3d 1172 [2d Dept 2012]).
In opposition, Defendants' claim that Plaintiff failed to demonstrate entitlement to summary judgment and its standing with admissible evidence is without merit. The argument that a contractual pre-foreclosure notice was required to served is belied by the express terms of the mortgage which does not contain such a necessity. In any event, proof of the service of a default notice was sufficiently established. Defendants' reliance on RPAPL §1304 is unavailing as a defense to summary judgment. Eshaghpours' twenty-second affirmative defense claiming, "Plaintiff has failed to provide the appropriate notice to the Defendant which notices are a condition precedent to the bringing of this suit." is "insufficient to raise the issue of the plaintiffs compliance with either statutory or contractual notice requirements" (see One WBank, FSB v Rosenberg, 189 A.D.3d 1600, 1602 [2d Dept 2020]). As such, those issues were not part of Plaintiff s prima facie burden and Defendants failed to demonstrate, with admissible evidence, the existence of an issue of fact that there was a failure to satisfy statutory or contractual notice requirements (id).
However, Eshaghpours raised an issue of fact as to whether the indebtedness secured by the mortgage was satisfied before the action was commenced. In opposition, Defendant Elena Eshaghpour claims that it was her "understanding that shortly after this loan was taken, Robin Eshaghpour, her husband, paid off this mortgage through a refinance involving an unrelated commercial property". As corroboration of that claim, Defendants point to the account ledger proffered by Plaintiff which contains multiple references that the loan is "Paid in Full". Elsewhere in the record, there are notations that the principal balance is "0.00". This information is sufficient to entitle Defendants to discovery on this issue only. Plaintiffs attempt to explain these discrepancies in reply was unavailing as it was contained in an attorney affirmation who failed to demonstrate knowledge of the facts.
As to the branch of Plaintiff s motion to dismiss Defendants' affirmative defenses, CPLR §3211 [b] provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit". For example, affirmative defenses that are without factual foundation, conclusory or duplicative cannot stand (see Countrywide Home Loans Servicing, L.P. v Vorobyov, 188 A.D.3d 803, 805 [2d Dept 2020]; Emigrant Bank v Myers, 147 A.D.3d 1027, 1028 [2d Dept 2017]). When evaluating such a motion, a "defendant is entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed" (Federici v Metropolis Night Club, Inc., 48 A.D.3d 741,743 [2d Dept 2008]).
As pled, all the affirmative defenses are entirely conclusory and unsupported by any facts in the answer. As such, these affirmative defenses are nothing more than unsubstantiated legal conclusions which are insufficiently pled as a matter of law (see Board of Mgrs. of Ruppert Yorkville Towers Condominium v Hayden, 169 A.D.3d 569 [1st Dept 2019]; see also Bosco Credit V Trust Series 2012-1 v. Johnson, 177 A.D.3d 561 [1st Dept 2020]; 170 W. Vil. Assoc, v. G &E Realty, Inc., 56 A.D.3d 372 [1st Dept 2008]; see also Becher v Feller, 64 A.D.3d 672 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V& M Opt., Inc., 51 A.D.3d 619 [2d Dept 2008]). Further, to the extent that specific legal arguments were not proffered in support of any affirmative defense, those defenses were abandoned (see U.S. Bank N.A. v Gonzalez, 172 A.D.3d 1273, 1275 [2d Dept 2019]; Flagstar Bank v Bellafiore, 94 A.D.3d 1044 [2d Dept 2012]; Wells Fargo Bank Minnesota, N.A v Perez, 41 A.D.3d 590 [2d Dept 2007]). Dismissal of Defendants' affirmative defenses does not affect the remaining issue herein as it relates to a denial of a of an aspect of Plaintiff s cause of action, to wit existence of an indebtedness and a default thereunder (see CPLR §3018).
Plaintiff has established that it is entitled to a default judgment against all non-appearing Defendants (see CPLR §3215; SRMOFII2012-1 Trust v Telia, 139 A.D.3d 599, 600 [1st Dept 2016]).
The branch of Plaintiff s motion to amend caption is granted without opposition (see generally CPLR §3025; JP Morgan Chase Bank, N.A. v Laszio, 169 A.D.3d 885, 887 [2d Dept 2019]).
Accordingly, it is
ORDERED that the branch of Plaintiffs motion for summary judgment on its causes of action for foreclosure and appointment of a referee are denied, and it is
ORDERED that all the affirmative defenses in Defendants' answer are stricken, and it is
ORDERED, that this action be and the same hereby is discontinued as against the defendants sued herein as 'John Doe' and 'Mary Doe', not having been served with copies of the Summons and Complaint and are not necessary party defendants, and that the said defendants be stricken out and eliminated from the title and caption of this action accordingly, all without prejudice to any of the proceedings heretofore had or to be had in this action; and it is further
ORDERED the caption is amended as follows:
and it is
ORDERED that this matter is set down for a status conference on March 20, 2023 @ 11:00 am via Microsoft Teams.